Citation Nr: 1450161
Decision Date: 11/12/14 Archive Date: 11/19/14
DOCKET NO. 01-06 149 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio
THE ISSUE
Entitlement to an evaluation in excess of 10 percent for residuals of a right wrist fracture with carpal dissociation.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. Caylor, Associate Counsel
INTRODUCTION
The Veteran served on active duty from February 1974 to October 1980.
This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a November 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied entitlement to a disability evaluation in excess of 10 percent for residuals of a right wrist fracture with carpal dissociation.
The Veteran testified at a hearing before a Decision Review Officer (DRO) in November 2001 and before the undersigned Veterans Law Judge (VLJ) during an April 2011 videoconference hearing. Transcripts are of record.
The Board remanded the Veteran's claim to the RO via the Appeals Management Center (AMC) in Washington, DC in July 2003, April 2004, and June 2011 for additional development. The Board then denied the claim in May 2012.
The Veteran appealed the May 2012 decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2013 Memorandum Decision, the Court vacated the Board's May 2012 decision on the issue of entitlement to a disability rating in excess of 10 percent for residuals of a right wrist fracture with carpal dissociation and remanded it to the Board. The Board then remanded the issue in January 2014 for additional development.
The issue of entitlement to service connection for a left wrist disability secondary to residuals of a right wrist fracture with carpal dissociation has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). See 38 C.F.R. § 3.380 (2014). The Board lacks jurisdiction over the issue and refers it to the AOJ for appropriate action.
Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2014). 38 U.S.C.A. § 7107(a)(2) (West 2002).
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
The Board regrets the additional delay; however, another remand of the claims on appeal is necessary to ensure the Veteran receives every possible consideration.
VA failed to substantially comply with Board remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The April 2014 VA examiner failed to clearly identify which of the Veteran's subjective symptoms and which objective findings were residuals of a right wrist fracture with carpal disassociation. The Board lacks the medical expertise to distinguish between symptoms and functional limitations attributable to the Veteran's residuals of a right wrist fracture with carpal dissociation and symptoms attributable to other diagnoses. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). In addition, the Court requested that the Board clarify any residual symptomatology stemming from the right wrist which caused or aggravated his right hand and fingers.
Accordingly, the case is REMANDED for the following action:
(Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c)).
1. Obtain an addendum opinion from the April 2014 VA examiner or, if unavailable, from another appropriate examiner, regarding the etiology of the Veteran's right wrist, right hand, and right finger symptoms. Provide the examiner with the claims file, including a copy of this REMAND and any pertinent evidence in the Veterans Benefits Management System (VBMS) or Virtual VA that is not already of record.
The examiner MUST clearly identify the symptoms and objective findings that are at least as likely as not (a 50 percent or greater probability): (a) residuals of a right wrist fracture with carpal dissociation or etiologically related to residuals of a right wrist fracture with carpal dissociation.
The examiner MUST consider the Veteran's lay statements regarding the duration, frequency, and severity of his s symptoms-including increased pain, stiffness, locking, tingling, poor coordination, numbness, and weakness of the right wrist, hand, and fingers and any objective findings and functional limitations-including decreased hand grip strength, x-ray findings, and limitation of motion-present since May 1999.
The examiner MUST also consider the following:
(i) April 2011 Board Videoconference Hearing (reporting having retired in 2005 from his position as a mechanic for the U.S. Postal Service in 2005 due to back problems but continuing to work as a self-employed rare coin dealer);
(ii) July 2011 VA Neurological and Joint Examination (asserting that his symptoms impeded occupational functioning because they limited his ability to work steadily, since he had to rest to alleviate them, and that his neurological complaints were constantly present);
(iii) October 2011 Group Health EMG (opining that finding of conduction velocity slowing and prolonged ulnar F-wave suggested possibility of a more diffuse process that may be related to underlying diabetes);
(iv) June 2014 VA Peripheral Neuropathy Examination (finding no functional impairment due to peripheral neuropathy).
If the examiner finds the Veteran has a separately diagnosed right hand or finger disability, the examiner MUST provide an opinion regarding:
(b) whether it is at least as likely as not (a 50 percent or greater probability) that any right hand or right finger disability is proximately due to or aggravated by any residuals of a right wrist fracture with carpal dissociation.
Please provide the basis for any diagnosis and a complete medical rationale for the opinion.
If the examiner finds that an opinion cannot be rendered without resorting to speculation, the examiner MUST state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or by the examiner (does not have the knowledge or training).
2. If the VA examiner identifies any right hand or finger symptoms as residuals of or etiologically related to residuals of a right wrist fracture with carpal dissociation, the RO should consider whether a separate disability rating would be warranted under another diagnostic code.
3. If the RO determines another diagnostic code may be applicable, notify the Veteran of the evidence necessary to substantiate a claim for a higher rating under the additional diagnostic codes via the Supplemental Statement of the Case.
4. If the VA examiner diagnoses a separate right hand or finger disability, notify the Veteran of the evidence necessary to substantiate a claim for secondary service connection for a hand or finger disability.
5. Then, the RO should refer the claim for a higher disability rating for residuals of a right wrist fracture with carpal dissociation to the Director of the VA Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b)(1) (2014).
6. Finally, the RO or AMC should readjudicate the claims on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should receive a Supplemental Statement of the Case and an opportunity to respond. If necessary, the claims should then be returned to the Board for further appellate action.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2014).
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K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).